Excerpt: ...rson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Plaintiff's first and third causes of action allege breach of express warranty under the Magnusson‐Moss Warranty Act and the Song‐Beverly Consumer Warranty Act, respectively. Both claims are subject to a four‐year statute of limitations. U...

Excerpt: ...159 Cal.App.4th 1292, 1307‐1308.) Ruling on Objections Defendants' objections are overruled. Plaintiff's objections to the length of defendants' memorandum is overruled as the court granted defendants' ex parte application seeking relief to file a lengthy memorandum. Ruling on Motion Defendants assert several grounds for expungement of the lis pendens. First, defendants claim Martin failed to properly serve the Amended Notice of Lis Pendens on ...

Excerpt: ...ontract agreement between plaintiff and defendant JBS Ventures, LLC. A threshold question for any motion to compel arbitration is whether there exists an agreement to arbitrate. (Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396.) The moving party carries this initial burden by proving, by a preponderance of the evidence, the existence of a valid arbitration agreement. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) Def...

Excerpt: ...; evidentiary sanction; and/or monetary sanctions. The court grants the request for terminating sanctions. The purpose of discovery sanctions is to prevent abuse of the discovery process and correct problems presented. (Do v. Superior Court (2003) 109 Cal.App.4th 1210, 1213‐1214.) It is not a weapon to provide for punishment, forfeiture, or avoidance of trial on the merits. (Ibid.) The imposition of terminating sanctions is generally limited to...

Excerpt: ...ntal disclosure on December 9, 2019. Defense counsel states he was unaware plaintiff had disclosed Lapin as an expert until plaintiff's counsel notified him that same day. Defendants then disclosed expert witness Steven Epcar in a supplemental disclosure the next day. Defendants seek relief from this tardy – by one day – supplemental disclosure of expert witness Epcar. Defendants assert they had no idea plaintiff objected to the untimely disc...

Excerpt: ...ns or accuracy of the described conduct. (Picton v. Anderson Union High School (1996) 50 Cal.App.4th 726, 733.) All properly pleaded facts are assumed to be true as well as those that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.) Initially, plaintiff concedes the allegations in the second cause of action for violations of the Homeowners Bill of Righ...

Excerpt: ...same function as a demurrer but is brought where the time for a demurrer has expired. (Code of Civil Procedure section 438(g); Southern California Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227.) A defendant challenging a complaint must show the pleading fails to state sufficient facts to constitute a cause of action. (Code of Civil Procedure section 438(c)(1)(B).) “[J]udgment on the pleadings must be denied where there are m...

Excerpt: ...intiffs seek an injunction requiring defendants Vincent Procopio and John Procopio to remove boulders and/or other obstructions which they allegedly placed in front of the access gate at 10100 Sunset Lane, and preventing defendants from blocking or in any way restricting access between the property located at 10100 Sunset Lane (“the Property”), and Sunset Lane, which is alleged to be either a public right‐of‐way or a prescriptive roadway ...

Excerpt: ...y determination establishes an initial presumption of fairness…” In re General Motors Corp. (3d Cir. 1995) 55 F.3d 768, 784. “[I]f the proposed settlement appears to be the product of serious, informed, non‐collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class, and falls within the range of possible approval, then the court should direct that...

Excerpt: ...legations in the pleadings are deemed true no matter how improbable the allegations may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. 8 A demurrer can only be used to challenge defects that appear on the face of the pleading, or from matters that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. No other extrinsic evidence may be considered. Ion Equipment Corp. v. Nelson (1980) 110 Cal.App...

Excerpt: ...ations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Tort liability against a public entity requires an authorizing statute or enactment. Gov. Code § 815(a); Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802. Plaintif...

Excerpt: ...onal or contrary factual detail or context to the allegations. The cases cited by defendant do not suggest that judicial notice is appropriate in these circumstances. As to Exhibit H, although it is referenced in the complaint, it does not form the basis for any of plaintiffs' claims, and defendant does not explain why it is necessary for the court to take judicial notice of this document. Ruling on Demurrer to Complaint Defendant Lance Aizen (�...

Excerpt: ...to sufficiently allege facts that would support punitive damages. Initially, there are insufficient allegations of fraud as the complaint only alleges negligence based upon a motor vehicle collision. Nor does the complaint sufficiently allege oppressive conduct on the part of defendant. Oppression generally refers to despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard to that person's rights. (Civil Code ...

Excerpt: ...cted processing time for civil documents. In light of this, it is unclear whether cross‐complainant was informed of the rejection in a timely manner to resubmit his opposition. The matter is continued to afford cross‐complainant to opportunity to re‐file the opposition. Cross‐complainant Clifton Huckabee shall file his opposition by Tuesday, August 25, 2020. If cross‐complainant fails to file his opposition, the court will proceed to he...

Excerpt: ...ment debtor, and memoranda of costs filed May 19, 2020, is granted in part, and denied in part. In 2007, judgment creditors Tammy Phillips (“Phillips”) and Tammy R. Phillips, a Professional Law Corporation (“the Corporation”) obtained a judgment against Kevan Gilman (“Gilman”) on their cross‐complaint. The judgment states principal damages totaling $20,608, statutory damages totaling $750, and prejudgment interest of $1,585. Judgmen...

Excerpt: ... the demand.” Code Civ. Proc., § 2034.260(a). The exchange of expert witness information must include either of the following: “(1) A list setting forth the name and address of a person whose expert opinion that party expects to offer in evidence at the trial. (2) A statement that the party does not presently intend to offer the testimony of an expert witness.” Code Civ. Proc. § 2034.260(b). Pursuant to Code of Civil Procedure section 203...

Excerpt: ... Inc. (2010) 191 Cal.App.4th 53, 63. To support a prayer for punitive damages, plaintiffs must allege ultimate facts supporting a finding of oppression, fraud or malice on the part of the defendant. Civil Code § 3294(a). Malice includes conduct which is intended by the defendant to cause 14 injury to the plaintiff, or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others....

Excerpt: ... party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) the likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party; and (4) the length of time elapsed between the ...

Excerpt: ...y Nos. 29 and 30. Plaintiff's responses are sufficient under the requirements of the Code of Civil Procedure. On or before September 4, 2020, plaintiff shall serve a further response to Special Interrogatory No. 28 which complies with the requirements of Code of Civil Procedure section 2030.220. The parties' requests for sanctions are denied. Motion to Compel Further Responses to Requests for Production of Documents (RFP Nos. 1‐7, 9‐11 and 27...

Excerpt: ... determination establishes an initial presumption of fairness…” In re General Motors Corp. (3d Cir. 1995) 55 F.3d 768, 784. “[I]f the proposed settlement appears to be the product of serious, informed, non‐collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class, and falls within the range of possible approval, then the court should direct that ...

Excerpt: ...Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable the allegations may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Plaintiffs assert six causes of action including (1) fraud in the inducement – intentional misrepresentation; (2) negligent misrepresentation; (3) fraud in the inducement – concealment; (4) fraud in the performance of...

Excerpt: ...improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews each cause of action keeping these principles in mind. First Cause of Action – Fraud In the first cause of action, plaintiffs Gabriel Moreno and Josefina Del Rio allege a fraud claim against the moving defendant Keller Williams based upon a theory PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPAR...

Excerpt: ...especially where defendant has not made a request for judicial notice. Turning to the substance of the demurrer, defendant challenges the entire complaint due to defendant Quasar LLC's failure to register with the California Secretary of State. A party may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. (Code of Civil Procedure section 430.10(e).) A limited liability corporation (LLC) organ...

Excerpt: ...oundation Hospitals (1976) 17 Cal.3d 699, 706; Laswell v. AG Seal Beach, LLC, et al (2010) 189 Cal.App.4th 1399, 1405. Under both federal and state law, a threshold question for any petition to compel arbitration is whether there exists an agreement to arbitrate. Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396. It is the petitioner that carries this initial burden of proving, by a preponderance of the evidence, the existence of a valid arbit...

Excerpt: ...en the chance to review Capital One's documents in advance of his deposition is speculative, and not supported by credible evidence. Plaintiff's request for sanctions is denied. Motion to Compel Deposition Defendant Wilmington Savings Fund Society FSB, d/b/a Christiana Trust's (“Wilmington's”) motion to compel deposition of plaintiff's person most knowledgeable is granted. Wilmington duly served plaintiff with a notice of deposition of its pe...